Questions and Answer on Special Education and Homelessness
The Office of Special Education and Rehabilitative Services and the Office of Elementary and Secondary Education issue this Question and Answer (Q & A) document to provide State and local educational officials, early intervention services providers, and homeless assistance coordinators with information to assist with implementation of the requirements of the Individuals with Disabilities Education Act (IDEA) and its implementing regulations and the McKinney-Vento Homeless Assistance Act (McKinney-Vento Act). This Q & A document represents the Department’s current thinking on these topics. It does not create or confer any rights for or on any person. This Q & A document does not impose any requirements beyond those required under applicable law and regulations.
If you are interested in commenting on this Q & A document, please email us your comment at OSERSguidancecomments@ed.gov (put the word Homelessness in the subject line of your e-mail) or write to us at the following address:
U.S. Department of Education,
550 12th Street, S.W., Room 5122
Potomac Center Plaza
Washington, DC 20202-2641
Specifically, this Q & A document provides information to special educators, early intervention providers, and homeless assistance coordinators about some of the requirements of the IDEA and the McKinney-Vento Act that apply in serving homeless children with disabilities. The IDEA assists States in meeting the early intervention needs of infants and toddlers with disabilities and their families and the special education and related services needs of children with disabilities. The IDEA rights and protections applicable to children with disabilities and their parents under Part B of IDEA (Grants to States program) and the rights and protections applicable to infants and toddlers with disabilities and their families under Part C of IDEA (Infants and Toddlers With Disabilities program) apply to homeless children with disabilities. Part B of IDEA (Part B) provides assistance to States, and through them to local school districts, to assist in providing a free appropriate public education (FAPE1) to children with disabilities between the ages of 3 and 21, inclusive. FAPE under Part B of IDEA is a statutory term that has a specific meaning, and includes, among other elements, the provision of special education and related services, at no cost to parents, under public supervision and direction, in an appropriate preschool, elementary school, or secondary school program in the State involved, in conformity with an individualized education program (IEP). States and their public agencies also have an affirmative obligation to identify, locate, and evaluate all children residing in the State who are suspected of having disabilities and who are in need of special education and related services, regardless of the severity of their disability. This obligation, known as “child find”, is specifically applicable to homeless children. Relevant requirements regarding FAPE and child find under Part B as they particularly apply to homeless children with disabilities are described in more detail throughout this Q & A document.
Part C of IDEA (Part C) authorizes assistance to States in developing and implementing a coordinated, Statewide early intervention system to meet the early intervention needs of infants and toddlers with disabilities and their families. Some relevant requirements of Part C relating to child find and the provision of early intervention services as they apply in particular to homeless infants and toddlers with disabilities and their families also are described further in this Q & A document.
In addition, two Federal civil rights laws, section 504 of the Rehabilitation Act of 1973 (Section 504) and title II of the Americans with Disabilities Act (Title II), protect students with disabilities. Section 504 ensures that educational institutions receiving Federal financial assistance from the Department of Education (Department) do not discriminate on the basis of disability against “qualified” students with disabilities. Generally, any student with a disability who is of mandatory school age is “qualified,” regardless of whether or not the student is homeless. Section 504 requires public elementary and secondary school systems to provide a free appropriate public education to each qualified student with a disability, regardless of the nature or severity of the disability. Title II also prohibits disability discrimination by public entities, including public schools, and similarly applies to students with disabilities who are homeless as well as those who are not homeless. For more information on the requirements of Section 504 and Title II, please consult the Section 504 Final Regulations at 34 CFR Part 104, at http://www.access.gpo.gov/nara/cfr/waisidx_07/34cfr104_07.html and the Title II regulations at http://www.access.gpo.gov/nara/cfr/waisidx_07/28cfr35_07.html.
The McKinney-Vento Act provides assistance to States to help them ensure educational rights and protections for children and youth experiencing homelessness. This program helps State educational agencies (SEAs) ensure that homeless children, including preschoolers and youths, have equal access to a free, appropriate public education, including a public preschool education, as provided to other children and youth. Consistent with the McKinney-Vento Act, children experiencing homelessness are to be provided services comparable to those received by other students in the school they attend, including transportation services, and education programs for which such students are otherwise eligible, such as services provided under Title I of the Elementary and Secondary Education Act of 1965, as amended by the No Child Left Behind Act of 2001 or similar State or local programs and programs for students with disabilities. These obligations are described in more detail in this document. For more information on the requirements of the McKinney-Vento Act, please see the Non-regulatory guidance on the Education for Homeless Youth Program (2004), found at:
The questions and answers included in this document are based on questions submitted to the Department by the National Homeless Assistance Law Center. For clarity, some additional questions and answers have been added to address issues that may arise in connection with providing special education and related services to homeless children with disabilities and affording the rights and protections under Part B to those children and their parents. The information contained in this document is not intended to reflect all requirements of Parts B and C of IDEA, Section 504 and Title II, and the McKinney-Vento Act that are applicable to homeless children with disabilities and their families. In some cases, the questions, and corresponding answers, presented in this Q & A document required interpretation of IDEA, Section 504 and Title II, and their implementing regulations, and the answers are not simply a restatement of the statutory or regulatory requirements. The responses presented in this document generally are informal guidance representing the interpretation of the Department of the applicable statutory or regulatory requirements in the context of the specific facts presented and are not legally binding. This document is not intended to be a replacement for careful study of IDEA and its implementing regulations. The statute, regulations, and other important documents, including Qs and As released in January 2007, related to IDEA and the regulations are found at http://idea.ed.gov. This website includes the final Part B regulations, which became effective on October 13, 2006 and the Notice of Proposed Rulemaking for Part C, published at 72 FR 26456 (May 9, 2007). A copy of the current regulations for Part C of IDEA can be found at: http://www.access.gpo.gov/nara/cfr/waisidx_07/34cfr303_07.html
1 The term free appropriate public education is used in IDEA, the McKinney-Vento Act and section 504 of the Rehabilitation Act of 1973, as amended. This term, however, has a different meaning under each statute. Therefore, the acronym FAPE, as used in this document, only refers to FAPE under IDEA.